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Neun v. Ewing

Supreme Court of Nebraska

May 22, 2015

PAUL A. NEUN AND CRYSTAL A. NEUN, APPELLANTS,
v.
JOHN W. EWING, JR., DOUGLAS COUNTY TREASURER, AND ANNE M. DETERMAN, APPELLEES

Page 188

[Copyrighted Material Omitted]

Page 189

Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.

Paul D. Heimann, of Erickson & Sederstrom, P.C., for appellants.

Donald W. Kleine, Douglas County Attorney, and Timothy K. Dolan for appellee John W. Ewing, Jr.

Jeffrey J. Blumel, of Abrahams, Kaslow & Cassman, L.L.P., for appellee Anne M. Determan.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 190

[290 Neb. 964] Wright, J.

I. NATURE OF CASE

Paul A. Neun and Crystal A. Neun (Appellants) appeal from the order which disposed of their petition for a writ of mandamus against John W. Ewing, Jr., the Douglas County treasurer (Treasurer), and Anne M. Determan, the holder of the tax sale certificate for Appellants' property. Appellants petitioned for such relief after they attempted to redeem their property in the manner prescribed by Neb. Rev. Stat. § 77-1824 (Reissue 2009) and were advised by both the Treasurer and Determan that the only avenue of redemption available to Appellants was Neb. Rev. Stat. § 77-1917 (Reissue 2009), which, unlike § 77-1824, required payment of costs and attorney fees.

Appellants principally challenge the district court's determination that once a foreclosure action was filed, they could not redeem their property under § 77-1824 but had to use the manner of redemption provided in § 77-1917. This determination was the basis for entering summary judgment in the Treasurer's favor. Appellants also challenge the district court's conclusion that Determan did not owe them a duty to return the amount they paid in costs and attorney fees under § 77-1917. Because we find no error in either regard, we affirm.

Page 191

II. SCOPE OF REVIEW

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.

A district court's grant of a motion to dismiss is reviewed de novo. SID No. 1. v. Adamy, 289 Neb. 913, 858 N.W.2d 168 (2015). When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which [290 Neb. 965] are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion. Id.

To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Id.

III. FACTS

This case involves a parcel of real estate located in Douglas County, Nebraska, and owned by Appellants. Hereinafter, this real estate will be referred to as " the property."

On March 1, 2010, at a public tax sale, the property was sold to Determan for delinquent taxes. On that same day, a tax sale certificate for the property was issued to Determan.

On August 30, 2013, pursuant to Neb. Rev. Stat. ยง 77-1902 (Reissue 2009), Determan timely filed an action in the district court for Douglas County to foreclose the tax lien represented by the tax sale certificate. Determan prayed that the property be sold to pay the amount due under the tax sale certificate, plus interest, as well as costs and attorney fees. Appellants and ...


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